MISTRY: In February 52 men accused of people smuggling were moved from detention in Darwin, to Melbourne, because of a backlog of cases in the Northern Territory. Teguh Juwarno is an Indonesian government MP. He visited some of the men at the Melbourne Remand Centre and says they are in good physical health. But he says he’s convinced they are victims of organised criminals.

JUWARNO: Their explanation their expression and the way they are talking to me I’m sure that they are only a victim from the what we call it mafia from people. They don’t know they just fisherman looking for some amount for their family.

MISTRY: Juwarno says the men say they were tricked into coming into Australian waters, often lured by promises of big money.

JUWARNO: An offer for them to bring the boat to go somewhere, bring the stuff, the boxes and they don’t know but in the middle of the sea suddenly in the night there are some other boat, bring the people and transfer to them. They cannot avoid because this is in the middle of the sea.

MISTRY: Their lawyers agree. Saul Holt is a Senior Public Defender at Victoria Legal Aid, which is representing most of the men.

HOLT: The Bigs of the people smuggling trade are not stupid enough to come to Australian waters because they know what will happen to to them so what they do is they recruit illiterate young fisherman offer them more money than they’ve seen before and often mislead them as to where they’re going to go and what they’re going to do and those are the young men that end up in Australian prisons.

MISTRY: As the men await their trials Victoria Legal Aid has launched a challenge concerning the offence of people smuggling. They’ve argued that asylum seekers have a legal right to come to Australia and therefore their clients, who assist them, should not have a case to answer.

HOLT: One of the things the prosecution has to prove is that the asylum seekers the people that the alleged people smugglers are bringing to Australia didn’t have a legal right to come here. What we’re arguing is that legitimate refugees and asylum seekers do have a legal right to come to Australia and have their claims checked. But that’s a difficult question of law and no ones yet sure what the answer is. So essentially the process we’re going through is asking the Court of Appeal to decide that questions early before any of the trials start so that everyone knows where they’re at.

MISTRY: Holt says a decision from the Victorian Court of Appeal is expected in a week and could affect all people smuggling cases in Australia. If found guilty the men face mandatory jail terms of three years. But Wirawan Kartono from the Indonesian Consulate in Melbourne, is concerned that some of the accused have been wrongly classed as adults.

KARTONO: From the method that was used by the Australian government to determine their ages they were alleged to be adults. What we know is that the bone structures might be affected by the place where they were born and by genetics.

MISTRY: The Consulate has been trying to provide documents to prove the men’s ages, but Kartono says all of them are extremely poor.

KARTONO: Most of the families live in the very remote areas so they’re very hard to contact and when we asked about legal documents they could hardly provide the documents because unlike in Australia in Indonesia when you live in remote areas it’s not common to have a birth certificate.

MISTRY: Politician Teguh Juwarno insists Indonesia is trying to crack down on organised people smugglers in the region. But he says his country needs help from its neighbours to find ways to tackle the complex problem.

JUWARNO: The push factor is you know their economic situation there are the offer to bring something to the border area and they got some money. There are also pull factors of might be the opportunity to be asylum seeker from the Middle East especially is still open. I think it needs better cooperation between Australia, Indonesia and maybe the other Asian countries.

MISTRY: One of the men’s lawyers Saul Holt says the Australian public needs to understand that many accused people smugglers don’t fit the stereotype that is often used by politicians.

HOLT: We think Australians are fundamentally fair minded once they understand who these people are they are not high level wealthy people smugglers they are poor illiterate Indonesian fisherman who have been brought into the country by the organised people smugglers people do seem to understand their position and the plight that they’re in.